IDEA Part C Final Regulations, pre-publication version. (MS Word)

Note:  This document has been delivered to the Office of the Federal Register but has not yet been scheduled for publication.  The official version of this document is the document that is published in the Federal Register.

Note:This document has been delivered to the Office of the Federal Register but has not yet been scheduled for publication. The official version of this document is the document that is published in the Federal Register.

4000-01-U

DEPARTMENT OF EDUCATION

34 CFR Part 303

RIN 1820-AB59

Early Intervention Program for Infants and Toddlers With Disabilities

AGENCY: Office of Special Education and Rehabilitative Services, Department of Education.

ACTION: Final regulations.

SUMMARY: The Secretary issues final regulations governing the Early Intervention Program for Infants and Toddlers with Disabilities. These regulations are needed to reflect changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004 (Act or IDEA).

DATES: These regulations are effective on [INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].

FOR FURTHER INFORMATION CONTACT:

Alexa Posny, U.S. Department of Education, 550 12th Street, SW, Potomac Center Plaza, room 5107, Washington, DC 20202-2641. Telephone: (202) 245-7605. If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay System (FRS) at 1-800-877-8339. Individuals with disabilities may obtain this document in an alternative format (e.g., braille, large print, audiotape, or computer diskette) upon request to the contact person listed under FOR FURTHER INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION: These regulations implement changes in the regulations governing the Early Intervention Program for Infants and Toddlers with Disabilities necessitated by the reauthorization of the IDEA.

On May 9, 2007, the U.S. Department of Education (the Department) published a notice of proposed rulemaking in the Federal Register (72 FR 26456) (NPRM) to amend the regulations governing the Early Intervention Program for Infants and Toddlers with Disabilities. In the preamble to the NPRM, the Secretary discussed, on pages 26456 through 26496, the changes proposed to the regulations for this program, which regulations are set forth in 34 CFR part 303.

In these regulations, the Department is amending and finalizing the regulations proposed in the May 2007 NPRM, except in the maintenance of effort (MOE) provisions (proposed §303.225) (which implement Part C’s supplement not supplant requirements). The Department plans to obtain additional public input and conduct further rulemaking in this area.

Due to the economic changes that many States have experienced since the publication of the NPRM in May 2007, the Department has received many informal inquiries requesting guidance on the MOE provisions in the Part C regulations (which implement the supplement not supplant requirements under Part C of the Act). States also have expressed concern about their ability to meet the MOE requirements and their continued participation in the Part C program. In response to these concerns, the Department intends to issue a separate NPRM and seek input from the public on the MOE provisions. Accordingly, these final regulations continue in §303.225 the MOE requirements in current §303.124.

Major Changes in the Regulations

The following is a summary of the major changes in these final regulations from the regulations proposed in the NPRM (the rationale for each of these changes is discussed in the Analysis of Comments and Changes section of this preamble):

Subpart A--General

Definitions

· The definition of multidisciplinary in §303.24 has been revised with respect to the individualized family service plan (IFSP) Team composition to require the parent and two or more individuals from separate disciplines or professions with one of these individuals being the service coordinator.

· Revised §303.25(a) and new §303.321(a)(5) and (a)(6) clarify that in the case of a child who is limited English proficient, native language means the language normally used by the parents of the child except that when conducting evaluations and assessments of the child, qualified personnel determine whether it is developmentally appropriate to use the language normally used by the child. Additionally, we have removed the requirement in proposed §303.25(a)(2) that the native language of the parents be used in all direct contact with the child.

· We have revised the definition of personally identifiable information in §303.29 to cross-reference, with appropriate modifications, the definition of that same term contained in the regulations under the Family Educational Rights and Privacy Act (FERPA) in 34 CFR 99.3, as amended.

· New §303.32 adds to these regulations a definition of scientifically based research, which cross-references, with appropriate modifications, the definition of the same term contained in section 9101(37) of the Elementary and Secondary Education Act of 1965, as amended (ESEA).

Subpart C--State Application and Assurances

Application Requirements

· Section 303.203(b)(2) clarifies that the State’s application must include, as part of coordination of all resources, those methods the State uses to implement the payor of last resort requirements in §303.511.

· Revised §303.208(b), regarding public participation policies and procedures, requires lead agencies to hold public hearings, provide at least 30 days’ prior notice for the hearings, and provide a public comment period of at least 30 days before adopting any new or revised Part C policies or procedures.

· Revised §303.209(b)(1)(i) (proposed §303.209(b)(2)(i)) requires that, for toddlers with disabilities who may be eligible for preschool services under Part B of the Act, the lead agency notify (consistent with any opt-out policy adopted by the State under §303.401(e)), not only the local educational agency (LEA) where the toddler resides, but also the State educational agency (SEA), and revise the timeline for the notification to occur not fewer than 90 days before the toddler’s third birthday.

· New §303.209(b)(1)(ii) clarifies that if the lead agency determines a child to be eligible for Part C services between 45 and 90 days prior to the toddler’s third birthday, the lead agency must notify (consistent with any opt-out policy adopted by the State under §303.401(e)), not only the LEA where the toddler resides, but also the SEA, as soon as possible after the toddler’s eligibility determination.

· New §303.209(b)(1)(iii) provides that if a child is referred to the lead agency fewer than 45 days before that toddler’s third birthday, the lead agency is not required to conduct the initial evaluation, assessment, or IFSP meeting, and if that child may be eligible for preschool services or other services under Part B of the Act, the lead agency, with the parental consent required under §303.414, must refer the toddler to the SEA and appropriate LEA.

· Revised §303.209(d)(2) clarifies that the transition plan is not a separate document, but is included in the IFSP.

· New §303.209(e) clarifies that a transition conference under §303.209(c) or meeting to develop the transition plan under §303.209(d) must meet the IFSP meeting requirements in §§303.342(d) and (e) and 303.343(a) and that this conference and meeting may be combined.

· New §303.209(f) clarifies when and what transition requirements in §303.209 apply to toddlers with disabilities, including toddlers in a State that elects to offer Part C services beyond age three under §303.211.

· Revised §303.211(b)(6) clarifies the transition requirements that apply to children receiving services under §303.211 as they transition to preschool, kindergarten or elementary school.

· Proposed §303.225 has been revised to include the MOE requirements in current §303.124. The Department intends to issue an NPRM on the MOE provisions and provide an opportunity for the public to comment on the proposed rule.

Subpart D — Child Find, Evaluations and Assessments, and Individualized Family Service Plans

General

· New §303.300 identifies the major components of the statewide comprehensive, coordinated, multidisciplinary interagency system by specifically distinguishing between pre-referral activities (public awareness and child find), referral, and post-referral IFSP activities (including screening, evaluations, assessments, and IFSP development, review, and implementation).

Pre-referral Procedures

· Revised §303.301(c) (proposed §303.300(c)) requires each lead agency, as part of its public awareness obligation, to provide for informing parents of toddlers about preschool programs under section 619 of the Act not fewer than 90 days prior to the toddler’s third birthday.

· Revised new §303.302(c)(1)(ii) (proposed §303.301(c)(1)(ii)) adds the following two programs to the list of programs with which the lead agency must coordinate its child find efforts: (1) the Children’s Health Insurance Program (CHIP) and (2) the State Early Hearing Detection and Intervention (EHDI) system. Since the publication of the May 2007 NPRM, the name of the State Children’s Health Insurance Program (S-Chip) was changed to the “Children’s Health Insurance Program (CHIP).” This change is reflected in these final regulations.

· Revised §303.303(a)(2)(i) requires primary referral sources to refer a child to the Part C program “as soon as possible but in no case more than seven days” after identification.

Post-Referral Procedures

· New §303.310 (proposed §303.320(e)(1)) requires that, within 45 days after the lead agency or early intervention service (EIS) provider receives a referral of a child, the screening (if applicable), initial evaluation, initial assessments (of the child and family), and the initial IFSP meeting for that child must be completed (45-day timeline).

· New §303.310(b)(2) adds an exception to the 45-day timeline if the parent has not provided consent to the initial screening, evaluation, or assessment of the child, despite documented, repeated attempts to obtain parental consent. Revised §303.310(c) (proposed §303.320(e)(2)) requires the lead agency to ensure completion of the initial evaluation, assessments, and IFSP meeting as soon as possible after parental consent is provided.

· Revised §303.320 (proposed §303.303) requires the lead agency to provide notice to parents of its intent to screen and clarifies that, at any time during the screening process, a parent may request an evaluation.

· Revised §303.321(a)(2)(i) (proposed §303.320) clarifies that (1) the term initial evaluation refers to the evaluation of a child that is used to determine his or her initial eligibility under Part C of the Act and (2) the term initial assessments refers to the assessment of the child and the family assessment that are conducted prior to the child’s first IFSP meeting.

· New §303.322 clarifies that the prior written notice requirements in §303.421 apply when the lead agency determines, after conducting an evaluation, that a child is not an infant or toddler with a disability.

· Revised §303.342(e) requires early intervention services to be provided as soon as possible after parental consent.

Subpart E--Procedural Safeguards

Confidentiality of Personally Identifiable Information and Early Intervention Records

· New §303.404(d) requires that the general notice provided to parents by the lead agency specify the extent to which that notice is provided in the native languages of the various population groups in the State.

· Section 303.405(a), regarding a parent’s rights to inspect and review any early intervention records and the timeline the lead agency must follow any time a parent makes such a request, is revised to require that the participating agency must comply with a parent’s request without unnecessary delay and in no case more than 10 days after the parent makes the request to inspect and review records.

· New §303.409(c) requires the participating agency to provide at no cost to the parent, a copy of each evaluation, assessment of the child, family assessment, and IFSP as soon as possible after each IFSP meeting.

· Section 303.414(b) sets forth the specific exceptions to the parental consent required before a participating agency may disclose personally identifiable information under these regulations.

· Proposed §303.414(d), regarding limited disclosures of personally identifiable information in early intervention records that may be sought by Protection and Advocacy (P&A) agencies, has been removed.

Parental Consent and Surrogate Parents

· Section 303.420(c) is revised to indicate that a lead agency may not use the due process hearing procedures under this part or under Part B of the Act to challenge a parent’s refusal to provide any consent required under §303.420(a), which includes consent for evaluations and assessments.

· New §303.422(g), concerning lead agency responsibility concerning surrogate parents, adds a 30-day timeline requirement regarding the lead agency’s obligation to make reasonable efforts to ensure the assignment of a surrogate parent after a public agency determines that the child needs a surrogate parent.

Dispute Resolution Options

· New §303.437(c) permits the due process hearing officer, in a State that elects to adopt the Part C due process hearing procedures under §303.430(d)(1), to grant specific extensions of time beyond the 30-day timeline at the request of either party.

· Section 303.446 is revised to permit, but not require, the lead agency to establish procedures that would allow any party aggrieved by the findings and decision in the due process hearing to appeal to, or request reconsideration of the decision by, the lead agency.

Subpart F--Use of Funds and Payor of Last Resort

· Section 303.520(a) establishes three new requirements that are designed to provide important protections for parents of infants and toddlers with disabilities balanced against the need for States to have access to public benefits and public insurance to finance Part C services while implementing the system of payments, coordination of funding sources, and payor of last resort requirements under Part C of the Act. Under this section, a State must obtain a parent’s consent prior to requiring a parent to enroll in a public benefits or insurance program or if the use of funds from a public benefits or insurance program imposes certain costs on the parent. This section also requires a State to provide written notice to parents of applicable confidentiality and no-cost protections if the State lead agency or EIS provider or program uses public benefits or insurance to pay for Part C services.

· Section 303.521(a) is revised to provide that the State’s system of payments policies must include the State’s definition of ability to pay and indicate when and how the agency makes its determination regarding the parent’s ability or inability to pay.

· A new §303.521(e) is added to address a parent’s procedural safeguard rights under a State’s system of payments.

Subpart G--State Interagency Coordinating Council

· Proposed §303.601(a), which states that a parent member on the Council may not be an employee of a public or private agency involved in providing early intervention services, has been removed.

· New §303.605(c) permits the Council to coordinate and collaborate with the State Advisory Council on Early Childhood Education and Care, which is required to be established by States under the Improving Head Start for School Readiness Act of 2007.

Subpart H—Federal and State Monitoring and Enforcement; Reporting; and Allocation of Funds

· Section 303.702(b) has been revised to indicate that the State annual reporting to the public, on the performance of each EIS program in relation to the State’s Annual Performance Report (APR) targets must be “as soon as practicable but no later than 120 days” following the State’s APR submission to the Secretary.

These final regulations contain additional changes from the NPRM that we explain in the following Analysis of Comments and Changes.

Analysis of Comments and Changes:

Introduction

In response to the invitation in the NPRM, more than 600 parties submitted comments on the proposed regulations. An analysis of the comments and of the changes in the regulations since publication of the NPRM immediately follows this introduction. The perspectives of parents, individuals with disabilities, early intervention providers, State and local officials, members of Congress, and others were useful in helping identify where changes to the proposed regulations should be made, and in formulating many of the changes. In light of the comments received, a number of significant changes are reflected in these final regulations.

Substantive issues are discussed under their corresponding subpart. References to subparts in this analysis are to those contained in the final regulations. The analysis generally does not address--

(a) Minor changes, including technical changes made to the language published in the NPRM;

(b) Suggested changes the Secretary is not legally authorized to make under applicable statutory authority; and

(c) Comments that express concerns of a general nature about the Department or other matters that are not directly relevant to these regulations, including requests for information about innovative early intervention methods or matters that are within the purview of State and local decision-makers.

Subpart A--General

Purpose and Applicable Regulations

Purpose of the early intervention program for infants and toddlers with disabilities (§303.1)

Comment: A few commenters recommended revising the title of §303.1 to replace “early intervention program” with “early intervention system.” These commenters stated that the word “system” is consistent with the language in the Act, other recent regulatory changes, and the intent of coordinated interagency efforts.

Discussion: The title of this section refers to the overall purposes of the Federal early intervention program that the Department administers under Part C of the Act and is being implemented through these regulations. The term is not intended to refer to the early intervention systems that States must develop and implement under Part C of the Act. Therefore, the title of this section has not been changed.

Changes: None.

Purpose of the early intervention program for infants and toddlers with disabilities (§303.1(d))

Comment: One commenter suggested that the list of historically underrepresented populations in §303.1(d) be revised to include infants and toddlers with disabilities who are wards of the State and homeless children. Other commenters recommended that we include infants and toddlers in foster care in this list.

Discussion: The historically underrepresented populations listed in §303.1(d) are the same as those listed in section 631(a)(5) of the Act, which refers to the need to enhance capacity to identify, evaluate, and meet the needs of all children, including historically underrepresented populations, particularly minority, low-income, inner-city, and rural children, and infants and toddlers in foster care.

The list in §303.1(d) is not exhaustive. Rather, this list provides examples of historically underrepresented populations, for whom State and local agencies and EIS providers need to improve services. For this reason, including children who are wards of the State and homeless children in §303.1(d) is not necessary. We also note that other sections of the Act and these regulations identify specific child find and other responsibilities of States for identifying, evaluating, and meeting the needs of children who are homeless and wards of the State. For example, §303.101(a)(1)(ii) through (a)(1)(iii) requires a State, as a condition of receiving Part C funds, to provide an assurance that the State has adopted a policy to make appropriate early intervention services available to infants and toddlers with disabilities who are homeless and their families and infants and toddlers with disabilities who are wards of the State.

Concerning the specific comment that infants and toddlers in foster care should be included in the list, we note that the list in §303.1(d) already includes “infants and toddlers in foster care.”

Changes: None.

Eligible recipients of an award and applicability of this part (§303.2)

Comment: One commenter indicated that tribal programs and tribal governments should be included in the list of eligible recipients of an award in §303.2.

Discussion: Section 303.2 provides that the Secretary of the Interior is an eligible recipient of funds under Part C of the Act. Under section 643(b)(2) of the Act, the Department of Interior, through the Bureau of Indian Education, distributes Part C funds to Indian entities that are eligible to receive services and funding from the United States. Under section 643(b)(1) of the Act, the Department must distribute Part C funds that are used by tribal programs and governments to the Secretary of the Interior and not directly to tribal programs and governments. Therefore, it would be inappropriate to list these entities as eligible recipients.

Changes: None.

Applicable regulations (§303.3)

Comment: Some commenters expressed concern with and were confused by the multiple terms used to refer to early intervention records across the subparts. The commenters noted, for example, that the proposed regulations use the terms “Part C records,” “early intervention records,” “education records,” and “the records.”

Discussion: We agree that using multiple terms to refer to early intervention records is confusing and, therefore, we have changed all references to “Part C records,” “education records,” and “the records” in this part to “early intervention records.” Additionally, we have added paragraph (b)(2) to §303.3 to indicate that any reference to “records” or “education records” in the applicable regulations means the early intervention records under this part.

Changes: We have changed all references to “Part C records,” “education records,” and “the records” in this part to “early intervention records.” Consequently, the reference to “Part C records” in §303.401(b)(2), regarding confidentiality procedures and the parents’ opportunity to inspect and review all Part C records, has been changed to “Part C early intervention records.” Also, the proposed phrase “education records” has been changed to “early intervention records” in §303.403(b), regarding the definition of early intervention records; §303.405(a), regarding parents’ right to access such records; §303.405(b), regarding what the right to inspect and review early intervention records includes; §303.406, regarding the record of access; §303.407, regarding records on more than one child; §303.408, regarding the requirement that agencies must provide parents, upon request, a list of the types and locations of early intervention records collected, maintained, or used by the agency; §303.410(a), regarding amendment of records at the parents’ request; and §303.411, regarding the opportunity for a hearing to challenge information in early intervention records.

Finally, the references to “the records” in the following regulations have been replaced with “early intervention records”: §303.7(b), regarding the definition of consent; §303.310(c)(1), regarding the documentation of exceptional circumstances that may delay the evaluation and initial assessment of a child; §303.405(b)(1), regarding parents’ right to a response to reasonable requests for explanations and interpretations of early intervention records; §303.405(b)(2), regarding parents’ right to request that a participating agency provide copies of early intervention records; §303.405(b)(3), regarding parents’ right to have a representative of the parents inspect and review the early intervention records; §303.406, regarding the maintenance of a record of parties obtaining access to early intervention records; §303.412(b), regarding the right of parents to place a statement commenting on information or disagreeing with the decision of the agency following a hearing to challenge information in early intervention records; §303.412(c), regarding the maintenance of any such explanation in the child’s record; §303.412(c)(1), regarding the length of time any explanation must be maintained as part of the early intervention records; §303.412(c)(2), regarding the disclosure of any explanation placed in the early intervention records, and §303.414(b)(2) regarding the modification provisions in applying the exceptions under FERPA to the Part C program.

Additionally, we have added §303.3(b)(2) to indicate that any reference to “education records” in EDGAR means “early intervention records” under this part.

Eligible recipients of an award (proposed §303.2) and limitation on eligible children (current §303.4)

Comment: Many commenters opposed our proposal to remove current §303.4, which provides that Part 303 does not apply to any child with a disability who is receiving a free appropriate public education (FAPE), in accordance with the Part B regulations in 34 CFR part 300. The commenters stated that this long-standing provision was an important component of State EIS systems for children who are transitioning from services under Part C of the Act to services under Part B of the Act. One commenter suggested retaining current §303.4 because the regulation helped to clarify that children receiving Part C services do not also receive FAPE under Part B of the Act. The commenter also indicated that it is important to clarify to whom the Part C regulations apply.

Discussion: We agree with the commenters and have included the language from current §303.4 in a new paragraph (b) under §303.2 to clarify that the regulations in Part 303 do not apply to a child with a disability who is receiving FAPE under Part B of the Act.

We also have modified this provision to identify the entities that must comply with Part 303. Part 303 applies to the lead agency and any EIS provider that is part of the Part C statewide system of early intervention required of each State in sections 634 and 635 of the Act, regardless of whether the EIS provider receives funds under Part C of the Act. Part 303 also applies to each child referred to Part C, as well as to infants and toddlers with disabilities (i.e., children determined eligible for services under Part C of the Act) and the families of these children, consistent with the definitions of child in §303.6 and infant or toddler with a disability in §303.21.

Changes: We have revised the title of §303.2 to read “Eligible recipients of an award and applicability of this part.” We have added a new paragraph (b) to provide that the provisions of Part 303 apply to the lead agency and any EIS provider that is part of the Part C statewide system of early intervention services, regardless of whether that EIS provider receives funds under Part C of the Act, and to all children referred to the Part C program and infants and toddlers with disabilities and their families. New paragraph (b) also provides that Part 303 does not apply to a child with a disability receiving a free appropriate public education or FAPE under 34 CFR part 300.

At-risk infant or toddler (§303.5)

Comment: Two commenters supported the proposed definition of at-risk infant or toddler in §303.5. Other commenters recommended revising the definition to expand the list of factors that could cause an infant or toddler to be considered at-risk. The suggested factors included exposure to lead paint, alcohol abuse, fetal alcohol syndrome, abandonment, post-natal drug exposure, homelessness, and family violence. One commenter suggested the list of factors be preceded by the phrase “including, but not limited to.”

Discussion: The list of factors that may contribute to an infant or toddler being considered at-risk for a developmental delay included in §303.5 is not meant to be exhaustive. We have not expanded this list further because §303.5 provides a sufficient number and range of factors that a State may include in its definition of at-risk infant or toddler for each State to understand the scope of the regulation. Further, §303.5 provides discretion and flexibility for each State to define at-risk infant or toddler and determine the factors that may contribute to an infant or toddler being considered at-risk for a developmental delay in light of the unique needs of the State’s at-risk population. Therefore, revising the definition of at-risk infant or toddler to expand the list of factors included in the definition is not necessary.

For clarity, we have replaced the phrase “such as,” which precedes the list of factors, with the word “including.” We note that the definitions of include and including in §303.18 clarify that the items named in a particular list are not all of the possible items that are covered, whether like or unlike the ones named. This change clarifies that the list of factors is not exhaustive.

Changes: We have replaced the phrase “such as” with the word “including.”

Comment: A few commenters expressed concern that Federal funding of Part C of the Act is not sufficient to serve at-risk infants and toddlers and that the inclusion of §303.5 may give parents the impression that early intervention services are available for at-risk infants and toddlers, when these services are not always available.

Discussion: The statute permits, but does not require, States to offer services to at-risk infants and toddlers. A definition of at-risk infant or toddler is necessary to guide implementation by States that choose to provide early intervention services to at-risk infants and toddlers. If a State chooses to provide these services, the State, pursuant to §303.204(a), must provide a definition of at-risk infant or toddler and a description of the services available to these children in the information the lead agency provides to parents and primary referral sources through the State’s public awareness program, as required under §303.301. For those States that choose to provide Part C early intervention services to at-risk infants and toddlers, the definition of at-risk infant or toddler in §303.5, which aligns with the statutory definition, provides the information States need to meet the Part C requirements.

Changes: None.

Comment: None.

Discussion: As proposed, the definition of at-risk infant or toddler provided that, at the State’s discretion, an at-risk infant or toddler may include an infant or toddler who is at risk of experiencing developmental delay because of biological and environmental factors, including those listed in the proposed definition. We have determined that this language should be clarified to provide that the term at-risk infant or toddler may include an infant or toddler who is at risk of experiencing developmental delays due to biological or environmental factors. We have made this change to clarify that States are not required to ensure that an at-risk infant or toddler is at risk due to meeting both types of factors.

Changes: We have replaced the phrase "biological and environmental" with "biological or environmental" in the definition of at-risk infant or toddler.

Child (§303.6)

Comment: One commenter expressed concern that the definition of child in §303.6 could be misinterpreted to mean that an infant or toddler under age three would not meet the definition. Another commenter stated that §303.6 should not be included in the regulations because there is no requirement that early intervention programs serve children over the age of three.

Discussion: The term child, as used in Part C of the Act, means an individual under the age of six. This is a broad definition that includes children with or without disabilities under the age of three (including infants and toddlers with disabilities) and children with or without disabilities ages three and older. While the commenter is correct that States are not required to provide early intervention services under Part C of the Act to a child over the age of three, a State may elect, under §303.211, to make early intervention services available to children ages three and older who are eligible for services under section 619 of the Act and previously received early intervention services under §303.211 until the child enters, or is eligible under State law to enter, kindergarten or elementary school. Nothing in §303.6 or these regulations requires a State to serve children with disabilities beyond age three under Part C of the Act.

Additionally, requirements in these regulations, such as the evaluation and assessment requirements in §303.321, apply to a child who is referred to the State Part C program but is determined not to be eligible as an infant or toddler with a disability. Thus, including a definition of child in the regulations is necessary, and this definition is clear in its inclusion of infants and toddlers under the age of three.

Changes: None.

Developmental delay (§303.10)

Comment: A few commenters suggested amending the definition of developmental delay. One commenter recommended that the definition be revised to specifically reference infants and toddlers with mild disabilities. Another commenter recommended that the regulations clarify that any definition of developmental delay that the State adopts in response to public comments should not exclude from eligibility children who are eligible under the State’s pre-existing definition of developmental delay.

Discussion: These comments are addressed in our discussion of the comments on §303.111.

Changes: None.

Early intervention service program (§303.11) and early intervention service provider (§303.12)

Comment: A few commenters expressed concern with the use of the term early intervention service program throughout the proposed regulations. One commenter suggested that the terms “early intervention service program” (EIS program) and “early intervention service provider” (EIS provider) were not used consistently throughout the proposed regulations, that the use of these terms was confusing, that the terms were sometimes used incorrectly, and that the terms did not align with the reporting requirements outlined in §§303.700 through 303.702. Another commenter recommended changing all references to “EIS” in the regulations to “EI” because “EIS” is a term used in Part B of the Act and has a different meaning under the Part B regulations.

Discussion: We do not agree that the terms “early intervention service program” and “early intervention service provider” are used inconsistently or incorrectly throughout the regulations, or that the terms do not align with the reporting requirements outlined in §§303.700 through 303.702. An early intervention service program, as defined in §303.11, is the entity designated by the lead agency for reporting purposes under sections 616 and 642 of the Act and under §§303.700 through 303.702; whereas an early intervention service provider, as defined in §303.12, is an entity (whether public, private, or nonprofit) or individual that provides early intervention services under Part C of the Act, whether or not the entity or individual receives Federal funds under Part C of the Act.

Changing the abbreviation “EIS” for purposes of referencing early intervention services is not necessary. “EIS” is the long-standing, commonly accepted abbreviation used in the field of early intervention and we do not anticipate any confusion by the abbreviation’s continued use in programs administered under Part C of the Act.

Changes: None.

Early intervention service provider (§303.12)

Comment: One commenter requested that the Department revise the regulations to clarify the distinction between “early intervention service providers” as used in Part C of the Act and “related services providers” as used in Part B of the Act.

Discussion: Parts B and C of the Act have different purposes, eligibility criteria, and requirements and the services required by each program are already defined in each part respectively. Part C of the Act requires States to make available to infants and toddlers with disabilities early intervention services to meet their developmental needs. The terms early intervention services and EIS provider are defined in the Part C regulations, respectively, in §303.13 and §303.12.

Part B of the Act requires States to make available to children with disabilities a free appropriate public education or FAPE, which includes special education and related services. The term related services is defined in the Part B regulations in 34 CFR 300.34 as supportive services that are required “to assist a child with a disability to benefit from special education” and includes transportation and developmental, corrective, and other supportive services. The term “related services provider” is not defined in the Part B regulations.

While many examples of early intervention services under Part C of the Act, including occupational therapy and speech-language pathology services, are the same as the examples of related services under Part B of the Act, there are potential differences between related services and early intervention services, based on differing ages of the populations served and purposes of the programs. Therefore, it is the Department’s position that the regulations for Part B and Part C of the Act, and specifically the definitions of related services, early intervention services, and early intervention service provider, distinguish sufficiently between the roles and functions of a related services provider under Part B of the Act and an early intervention service provider under Part C of the Act.

Changes: None.

Early intervention services, general (§303.13(a))

Comment: One commenter recommended changing the defined term early intervention services to “early intervention” so that readers would not confuse early intervention services under Part C of the Act with the early intervening services described in 34 CFR 300.226 of the Part B regulations.

Discussion: The term early intervention services, defined in §303.13(a), mirrors the term “early intervention services” referenced throughout Part C of the Act. In order to remain consistent with the statutory language, we have not changed the term early intervention services within this part.

Changes: None.

Comment: One commenter recommended that we modify the definition of early intervention services to reflect the provisions in 34 CFR 300.324(a)(2) of the Part B regulations, which require a child’s individualized education program (IEP) Team consider special factors when developing a child’s IEP.

Discussion: We address this comment in our discussion of the comments on §303.342.

Changes: None.

Comment: Two commenters recommended that, when describing the purpose of early intervention services in general, we retain the language that these services must be designed to serve “the needs of the family related to enhancing the child’s development” that is in current §303.12(a)(1). The commenter stated that meeting family needs is a key component of an early intervention system and should be addressed routinely in IFSP development, rather than only upon family request.

Discussion: Proposed §303.13(a)(4) provided that early intervention services are developmental services that are designed to meet the developmental needs of an infant or toddler with a disability, and, “as requested by the family, the needs of the family.” We agree with the commenters that our inclusion of the language “as requested by the family” could be interpreted to mean that addressing the needs of a family of an infant or toddler with a disability is not an essential component of early intervention services under Part C of the Act. This was not our intention in proposing this language. Therefore, for clarity we have removed this phrase from §303.13(a)(4).

Changes: We have removed the phrase “as requested by the family” from §303.13(a)(4).

Comment: A few commenters recommended adding the word “language” in §303.13(a)(4)(iii) regarding communication development because communication and language have separate meanings and the regulations should make that distinction.

Discussion: The list of developmental areas in §303.13(a)(4) reflects the requirements in section 632(4)(C) of the Act. The Department’s position is that communication is a broader developmental area than language but that it includes language, and thus no further change is necessary.

Changes: None.

Comment: One commenter recommended clarifying in §303.13(a)(4)(iv), which identifies social or emotional development as an area in which early intervention services may be provided, the differences between the terms social development and emotional development because they are separate developmental processes. Another commenter recommended adding “social skills” to the list of developmental areas in §303.13(a)(4).

Discussion: Social and emotional development are two distinct developmental areas. Therefore, section 632(4)(C)(iv) of the Act and §303.13(a)(4)(iv) use the term “or” to make clear that early intervention services may address a child’s needs in either developmental area. Consequently, we do not agree that further clarification of these areas is necessary. Concerning the request to add social skills to §303.13(a)(4), the term social or emotional development includes the acquisition of developmental skills, such as social skills. Thus, adding “social skills” to the developmental areas identified in §303.13(a)(4) is not necessary.

Changes: None.

Comment: None.

Discussion: We realize that the term “early intervention” should have been included before the word “services” in §303.13(a)(5), which provides that developmental services must meet the standards of the State in which the services are provided, including the requirements of Part C of the Act. We have added the phrase “early intervention” before the word “services.”

Changes: We have revised §303.13(a)(5) to include the phrase “early intervention” before the word “services.” Where appropriate, we have made similar changes throughout the regulations.

Comment: One commenter requested that the Department amend §303.13(a)(8) to require that specific services and methods be provided in natural environments to the maximum extent appropriate. Additionally, the commenter suggested that we add the phrase “and based on the child’s developmental needs and chronological age” to §303.13(a)(8) after the word “appropriate.”

Discussion: Section 303.13(a)(8) references the definition of natural environment in §303.26, which provides that natural environments are settings that are natural or typical for a same-aged infant or toddler without a disability and may include the home, community, or other settings that are typical for an infant or toddler without a disability. Additional natural environment requirements are in §§303.126 and 303.344(d)(1)(ii) and we have added, in §303.13(a)(8), a cross-reference to both of these regulations. Section 303.126 requires that each State’s system include policies and procedures to ensure that early intervention services are provided in natural environments to the maximum extent appropriate. Section 303.344(d)(1)(ii), regarding IFSP content, requires that the IFSP Team include on the child’s IFSP a statement that each early intervention service is provided in the natural environment for that child or service to the maximum extent appropriate or a justification, based on the child’s outcomes, when an early intervention service is not provided in the natural environment for that child. In light of these other regulatory provisions, amending the language regarding natural environments in §303.13(a)(8) to reference specific early intervention services or methods of delivering early intervention services is not necessary.

With regard to the commenter’s suggestion that we add the phrase “and based on the child’s developmental needs” to §303.13(a)(8) after the word “appropriate,” §303.13(a)(4) already provides that early intervention services must be designed to meet the developmental needs of an infant or toddler with a disability. Therefore, adding “and based on the child’s developmental needs” would be repetitive and thus not necessary. Adding the phrase “and based on the child’s chronological age” to §303.13(a)(8) also is not necessary because the definition of natural environments in §303.26 includes environments that are “natural or typical for a same-aged infant or toddler without a disability.” This definition takes into account the comparability to same-aged peers as well as the chronological age of the child in the context of natural environments. The Secretary believes that the natural environments provisions in these regulations address sufficiently and appropriately the issues raised by the commenter.

Changes: We have added in §303.13(a)(8) a cross-reference to §303.344(d).

Comment: One commenter requested that we clarify in the definition of early intervention services that EIS providers who work with infants and toddlers with disabilities and their families should focus their services on ensuring that family members and children have the tools needed to continue developing the skills identified in the IFSP whenever a learning opportunity presents itself even when a teacher or therapist is not present.

Discussion: Section 303.344(d) requires the IFSP to include the early intervention services that are necessary to meet the unique needs of the child and family to achieve the results or outcomes identified in the IFSP. If the IFSP Team determines that a child or family needs services to help the child learn when a teacher or therapist is not present, then that outcome, and services to meet that outcome, must be included in the IFSP. This individualized approach, in which appropriate outcomes and services are determined by the IFSP Team in light of each child’s unique needs, is appropriate and is addressed sufficiently under this part. Therefore, clarifying the definition of early intervention services, as requested by the commenter, is not necessary.

Concerning the comment about providing family members with the necessary tools to help an infant or toddler with a disability learn even when a teacher or therapist is not present, we agree that EIS providers should work with the parents of an infant or toddler with a disability so that the parents can continue to assist the child whenever a learning opportunity occurs. However, in addition to the reasons stated, adding language to §303.13 as requested is not necessary because the definition of EIS provider in §303.12(b)(3) specifies that such providers are responsible for consulting with and training parents and others concerning the provision of early intervention services described in the IFSP of the infant or toddler with a disability. Additionally, this consultation and training will provide family members with the tools to facilitate a child’s development even when a teacher or therapist is not present.

Changes: None.

Types of early intervention services (§303.13(b))

Comment: One commenter supported our proposal to remove nutrition services and nursing services from the types of early intervention services identified in §303.13(b) (current §303.12(d)(6) through (d)(7)), stating that these services are medical in nature and not consistent with the definition of early intervention as a developmental program.

However, many commenters opposed removing nutrition services from the types of early intervention services identified and requested that nutrition services be specifically included as one of the types of early intervention services identified in the final regulations.

Numerous commenters also opposed the removal of nursing services from the definition of early intervention services and requested that these services be specifically included in that definition in the final regulations. Other commenters stated that although they recognized that the Act did not include a specific reference to nursing services, these services could nonetheless be provided, where appropriate, pursuant to §303.13(d), which recognizes that services other than those listed in the definition may constitute early intervention services under certain circumstances.

Additionally, many commenters requested that music therapy be included in the definition of early intervention services.

Other commenters requested that respite care be specifically included in the definition of early intervention services. One commenter requested that we include parent-to-parent support as a type of early intervention service because of its value and importance.

Discussion: The specific early intervention services that are listed in §303.13(b) are those identified in section 632(4)(E) of the Act. While nursing services and nutrition services are not specifically mentioned in the Act, they historically have been included in the definition of early intervention services. For clarity, we have included the previous definitions of nursing services and nutritional services from current §303.12(d)(6) and (7) in new §303.13(b)(6) and (b)(7). However, as noted in the preamble to the NPRM and in the definition of early intervention services in the regulations, this list is not exhaustive. Specifically, §303.13(d) states that “(t)he services and personnel identified and defined in paragraphs (b) and (c) of this section do not comprise exhaustive lists of the types of services that may constitute early intervention services or the types of qualified personnel that may provide early intervention services.” Further, §303.13(d) states that “[n]othing in this section prohibits the identification in the IFSP of another type of service as an early intervention service provided that the service meets the criteria identified in paragraph (a) of this section.”

Section 303.13(d) clearly conveys that the early intervention services identified in §303.13(b) are not an exhaustive list and may include other developmental, corrective, or supportive services that meet the needs of a child as determined by the IFSP Team, provided that the services meet the criteria identified in §303.13(a) and the applicable State’s definition of early intervention services. We added the previous definitions of nursing services and nutritional services to these final regulations because these definitions are defined in the current regulations and relied upon by the field. However, adding new definitions of additional services identified by the commenters, such as music therapy and respite care, is not necessary.

Changes: We have added new §303.13(b)(6) to define nursing services to include the assessment of health status for the purpose of providing nursing care, including the identification of patterns of human response to actual or potential health problems; the provision of nursing care to prevent health problems, restore or improve functioning, and promote optimal health and development; and the administration of medications, treatments, and regimens prescribed by a licensed physician.

We have also added new §303.13(b)(7) to define nutrition services to include: (i) conducting individual assessments in nutritional history and dietary intake; anthropometric, biochemical, and clinical variables; feeding skills and feeding problems; and food habits and food preferences; (ii) developing and monitoring appropriate plans to address the nutritional needs of children eligible under this part, based on the findings in paragraph (b)(7)(i) of this section; and (iii) making referrals to appropriate community resources to carry out nutrition goals. Subsequent definitions have been renumbered accordingly.

Types of early intervention services--Assistive technology device and service (§303.13(b)(1))

Comment: Two commenters recommended that we modify the definition of assistive technology device to include the language from the preamble of the NPRM that, under certain circumstances, Part C funds may be used to pay for a hearing aid.

Another commenter requested that the Department explicitly state in the regulations or in a memorandum or policy letter issued to Part C lead agencies that hearing aids and appropriate related audiological services may be considered, under certain circumstances, an appropriate early intervention service and an assistive technology device.

Discussion: The definition of assistive technology device does not identify specific devices; including an exhaustive list of assistive technology devices in the definition would not be practical. Whether a hearing aid or an appropriate related audiological service is considered an assistive technology device or an early intervention service, respectively, for an infant or toddler with a disability depends on whether the device or service is used to increase, maintain, or improve the functional capabilities of the child and whether the IFSP Team determines that the infant or toddler needs the device or service in order to meet his or her specific developmental outcomes. Therefore, we have not revised this definition.

Changes: None.

Comment: Several commenters requested further clarification of the definition of assistive technology device and service in §303.13(b)(1). These commenters stated that the definition should be revised to specifically exclude prosthetic limbs because these are personal devices for daily use.

Discussion: The definition of assistive technology device and service in §303.13(b)(1) aligns with the definitions of those terms in section 602(1) and (2) of the Act and 34 CFR 300.5 and 300.6 of the Part B regulations. These definitions provide sufficient clarity about what types of devices or technologies are included in the definition and, therefore, indicating that a specific device or technology is excluded is unnecessary. Additionally, we note that, while Part C lead agencies are not responsible for providing personal devices meant for daily or personal use, such as eyeglasses, hearing aids, or prosthetic limbs, to an infant or toddler with a disability, these devices may be an early intervention service if the device is not surgically implanted (§303.13(b)(1)(i) specifically excludes medical devices that are surgically implanted), and the IFSP Team determines that the infant or toddler with a disability requires such a personal device to meet the unique developmental needs of that infant or toddler.

Changes: None.

Comment: One commenter recommended that we modify the definition of assistive technology device and service to be consistent with the Assistive Technology Act (P.L. 105-394).

Discussion: The definitions of assistive technology device and service in §303.13(b)(1) align with section 602(1) and (2) of the Act. The definitions in section 602(1)(A) and (2) of the Act are substantially similar to the definitions of assistive technology device and assistive technology service in section 3(3) and (4) of the Assistive Technology Act of 1998 (P.L. 105-394) (AT Act), but the language in section 602 of the Act is more specific to the needs of children with disabilities. Furthermore, unlike the AT Act, section 602(1)(B) of the Act expressly excludes from the definition of assistive technology device those medical devices that are surgically implanted or the replacement of such devices. Thus, while the definitions are similar, it is not appropriate to include in these regulations the specific language from the AT Act.

Changes: None.

Comment: A few commenters supported our clarification in the preamble to the NPRM that the optimization (e.g., mapping) of surgically implanted medical devices is not the responsibility of the lead agency or the EIS program.

Many commenters, however, opposed our proposal to exclude optimization (e.g., mapping) of surgically implanted medical devices, including cochlear implants, from the definition of assistive technology device. Commenters stated that excluding optimization (e.g., mapping) of surgically implanted medical devices, including cochlear implants, from the types of early intervention services that could be provided under the Act contradicts the intent of Congress. Many of these commenters also stated that excluding optimization (e.g., mapping) services from the definition of assistive technology device would preclude funding of these services under this part and thus some infants and toddlers with cochlear implants would not receive mapping services, ultimately jeopardizing their ability to hear and learn. Another commenter suggested that setting and evaluating a surgically implanted medical device, particularly a cochlear implant, is the same as setting a listening device, which is a covered service.

Discussion: The term “mapping” refers to the optimization of a cochlear implant, and more specifically, to adjusting the electrical stimulation levels provided by the cochlear implant that are necessary for long-term post-surgical follow-up of a cochlear implant. Although the cochlear implant must be mapped properly for the child to hear well while receiving early intervention services, the mapping does not have to be done while the child is receiving early intervention services in order for the mapping of the device to be effective.

We maintain that excluding optimization (e.g., mapping) of a cochlear implant from the definition of early intervention services is consistent with the Act. Section 632 of the Act defines early intervention services and specifies categories of these services. The categories of early intervention services that relate to optimization (e.g., mapping) are assistive technology devices and assistive technology services.

Section 602(1)(B) of the Act excludes from the definition of an assistive technology device “a medical device that is surgically implanted, or the replacement of such device.” Section 602(2) of the Act states that assistive technology service “means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device.” A cochlear implant, as a surgically implanted medical device, is excluded from being an assistive technology device under section 602(1)(B) and, therefore, optimization (e.g., mapping) of a cochlear implant cannot directly assist an infant or toddler with a disability with regard to an assistive technology device that is covered under the Act. Thus, optimization (e.g., mapping) is not an assistive technology service and excluding optimization from the definition of early intervention service is consistent with the Act.

We also note that the exclusion of mapping does not prevent the appropriate early intervention service provider from checking to ensure the device is working.

We do not agree that optimization of a cochlear implant is the same as setting a listening device. Unlike a cochlear implant, a listening device is not a surgically implanted device. The Act excludes surgically implanted devices, such as cochlear implants, from the definition of assistive technology device but does not exclude listening devices. Therefore, we have not revised §303.13(b)(1) as requested by the commenters.

Changes: None.

Comment: One commenter recommended that the definition of assistive technology device include the phrase “all related and necessary components of the system” to make clear that the individual components needed to develop a customized device (e.g., ear mold for an FM system or a light pointer for an augmentative and alternative communication device) would be considered an assistive technology device and, therefore, a covered early intervention service under Part C of the Act. The commenter also recommended adding the phrase “specially fit” to the definition of assistive technology device.

Another commenter requested that low-tech assistive technology devices, for example, items that can be purchased at a department store, be expressly included in the definition.

Discussion: The definition of assistive technology device adequately addresses the commenters’ concerns and is not amended. Section 303.13(b)(1)(i) provides that an assistive technology device includes equipment or product systems that may need to be modified or customized to meet the specific needs of a particular infant or toddler with a disability. A customized assistive technology device would include devices that are “specially fit” as well as all components needed to modify or customize that device for an infant or toddler with a disability.

The definition of assistive technology device in §303.13(b)(1)(i) states that an assistive technology device means any “item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized.” The language “acquired commercially off the shelf” in the definition adequately addresses the commenter’s request that low-tech assistive technology devices be included in the definition of assistive technology device.

Changes: None.

Comment: One commenter did not agree with the language in §303.13(b)(1)(ii)(E), which provides that an assistive technology service includes training or technical assistance for an infant or toddler with a disability or, if appropriate, that child’s family. The commenter specifically requested that the phrase “if appropriate” be removed because, according to the commenter, it is always appropriate to provide training and technical assistance to the family of an infant or toddler with a disability who receives assistive technology services.

Discussion: The language referenced by the commenter in §303.13(b)(1)(ii)(E) is substantively unchanged from language in current §303.12(d)(1)(v). We do not agree that providing training to a family of an infant or toddler with a disability who is receiving an assistive technology service will always be appropriate. For example, if training already has been provided to a family about an assistive technology device and the family is familiar with its use, the IFSP Team may determine that it is not necessary to train family members again. As part of the family-directed assessment under §303.321, the IFSP Team (which includes the parent) determines whether training is necessary. The family assessment identifies the resources, priorities, and concerns and the supports and services necessary to enhance a family's capacity to meet the developmental needs of the infant or toddler with a disability, including whether training of family members regarding assistive technology services is appropriate or necessary.

Changes: None.

Types of early intervention services--family training, counseling, and home visits (§303.13(b)(3))

Comment: A few commenters requested that we clarify the definition of family training, counseling, and home visits in §303.13(b)(3). One commenter recommended deleting the reference to “home visits” in the title of this paragraph because the commenter considered home visits to be a method of providing a service rather than a service in and of itself. The commenter acknowledged that the Department may not be able to make this change, however, because the term home visits is used in the Act. One commenter expressed concern that this definition could be misinterpreted to mean that family training must occur in the home and must include counseling.

Discussion: Section 632(4)(E)(i) of the Act expressly states that early intervention services include family training, counseling, and home visits. Thus, removing the reference to home visits from §303.13(b)(3) would be inconsistent with the Act.

The language in §303.13(b)(3) does not mean that family training must occur in the home or include counseling. Section 303.13(b)(3) merely defines three separate early intervention services –- family training, counseling, and home visits -- that may be provided to assist the family of an infant or toddler with a disability in understanding the special needs of the child and enhancing the child’s development.

Changes: None.

Comment: One commenter questioned how the family training services referenced in §303.13(b)(3) differ from the parent training referenced in the definition of psychological services in §303.13(b)(10)(iv).

Discussion: The term family training, as used in §303.13(b)(3), is an example of an early intervention service identified in section 632(4)(E) of the Act and parent training is referenced in §303.13(b)(10)(iv) as an example of one component of a program of psychological services for an infant or toddler with a disability. While there may be some overlap in these services, the purposes and providers of the trainings may differ. “Family training” as used in §303.13(b)(3) is broader than “parent training” in §303.13(b)(10)(iv). For example, family training in §303.13(b)(3) may include training in any area related to the special needs of the infant or toddler with a disability (such as the use of specialized equipment or feeding techniques); whereas, parent training as used in §303.13(b)(10)(iv) only encompasses training with respect to the child’s psychological condition and the psychological services the child is receiving.

Changes: None.

Comment: One commenter recommended adding “support of the parent-child relationship” as an area that would be covered by the definition of family training, counseling, and home visits in §303.13(b)(3).

Discussion: Supporting the parent-child relationship may be one of any number of early intervention services provided to assist a family of an infant or toddler with a disability in understanding the special needs of the child and enhancing that child’s development. Including specific types of services in §303.13(b)(3) is not necessary because a wide range of services could fall under the definition of family training, counseling, and home visits. Indeed, including such a list could be interpreted to limit the types of services that would be considered family training, counseling, and home visits. We want to ensure that the regulations provide the flexibility for each IFSP Team to determine appropriate early intervention services based on the unique needs of an infant or toddler with a disability and his or her family. Leaving this definition more general will provide IFSP Teams with that flexibility.

Changes: None.

Comment: One commenter recommended adding references to “family training and home visits” in the definitions of all other services that are critical components of early intervention service delivery.

Discussion: Adding references to “family training and home visits” throughout the regulations is not necessary because §303.13(b)(3) makes clear that family training, counseling, and home visits are an early intervention service that may be provided under Part C of the Act. However, the determination of whether these particular services are provided to a family is made by the IFSP Team in accordance with the provisions in §§303.340 through 303.346. Accordingly, adding references to family training and home visits or other specific early intervention services in other sections of the regulations would not be appropriate.

Changes: None.

Comment: One commenter recommended adding language to §303.13(b)(3) to provide that any training must be provided to all family members.

Discussion: The use of the word “family” in this definition is broad enough to encompass all family members if the IFSP Team determines that it is appropriate to provide training to all family members. Further, the decision about whether a family member receives training must be made by the IFSP Team in accordance with section 636(d)(4) of the Act and §303.344(d)(1) of these regulations. We cannot mandate in these regulations that family training or any other specific early intervention service be provided to an infant or toddler with a disability or that child’s family.

Changes: None.

Types of early intervention services--occupational therapy (new §303.13(b)(8)) (proposed §303.13(b)(6))

Comment: Several commenters supported our proposed definition of occupational therapy in new §303.13(b)(8) (proposed §303.13(b)(6)), but suggested that the Department modify the definition to require that such services be provided by qualified occupational therapists as required in 34 CFR 300.34(c)(6) of the Part B regulations.

One commenter requested that we clarify the definition to state that an occupational therapy assistant working under the direct supervision of an occupational therapist could provide occupational therapy services.

A few commenters recommended that this definition identify the specific functional domains that occupational therapists facilitate and promote such as physical, cognitive, communication, social, emotional, and adaptive skills.

Discussion: Specifying that occupational therapy must be provided by a qualified occupational therapist, as required in the Part B regulations, is not necessary because occupational therapists are identified in §303.13(c)(4) as a type of qualified personnel who provide the early intervention services listed in §303.13(b). Additionally, §303.119(c) provides that paraprofessionals and assistants who are appropriately trained and supervised in accordance with State law, regulation, or written policy, may assist in the provision of early intervention services under Part C of the Act. Repeating this language from §§303.13(c) and 303.119(c) in new §303.13(b)(8) is not necessary.

The functional skill domains that the commenter requested be listed in new §303.13(b)(8) are already listed in §303.13(a)(4). Thus, under these regulations, occupational therapy services could focus on one or more of these functional skill domains, and the specific occupational therapy services provided to a child would be based on the occupational therapy outcomes in the child’s IFSP.

Changes: None.

Types of early intervention services--special instruction (new §303.13(b)(14)) (proposed §303.13(b)(11))

Comment: One commenter recommended changing the title of the definition of special instruction in new §303.13(b)(14) (proposed §303.13(b)(11)) to “developmental instruction” because “special instruction” services may not be covered by public or private insurance.

Discussion: Section 632(4)(E)(ii) of the Act references “special instruction” as an example of an early intervention service. The definition of special instruction has not changed substantively from the definition of special instruction in current §303.12(d)(13) and specifically includes developmental instruction. States may refer to this early intervention service as “developmental instruction” or use another term, provided that it meets the definition of special instruction in §303.13(b). Moreover, many States currently use the term “special instruction” and, thus, revisions to the title of this definition are not necessary.

Changes: None.

Types of early intervention services--speech-language pathology services (new §303.13(b)(15)) (proposed §303.13(b)(12))

Comment: Some commenters recommended that sign language, cued language, auditory/oral language, and transliteration services be defined separately from, and not included in, the definition of speech-language pathology services because they are different types of services. One commenter supported their inclusion in the definition. A few commenters suggested that separate definitions would reflect that speech-language pathologists and interpreters receive different preparatory training, are licensed by different boards, and are subject to different professional regulations.

Other commenters noted that sign language, cued language, auditory/oral language, and transliteration services are provided by qualified professionals, such as audiologists, teachers of children who are deaf and hard of hearing, and interpreters, and that speech-language pathologists may not necessarily be qualified to provide these services. Finally, one commenter recommended that, at a minimum, we change the title of this definition to reference sign language and cued language services to be consistent with the list of types of early intervention services specified in section 632(4)(E)(iii) of the Act.

Discussion: We agree that establishing a separate definition of sign language and cued language services, which includes auditory/oral language and transliteration services, is consistent with section 632(4)(E)(iii) of the Act. Therefore, we have included in new §303.13(b)(12) a definition of the term that incorporates the language from proposed §303.13(b)(12)(iv).

Changes: We have moved proposed §303.13(b)(12)(iv) to new §303.13(b)(12). Due to the addition of this separate definition of sign language and cued language services in §303.13(b)(12), the definitions in §303.13(b) (types of early intervention services), beginning with the definition of social work services, have been renumbered.

Comment: A significant number of commenters requested that the Department clarify that sign language and cued language services may be provided not only to children who are deaf or hard of hearing but also to an eligible child who is not deaf or hard of hearing whose IFSP Team has identified such services as appropriate to meet that child’s developmental needs.

Discussion: We agree with the commenters and have not included the reference to infants and toddlers with a disability who are deaf or hard of hearing from proposed §303.13(b)(12)(iv) in the new definition of sign language and cued language services in new §303.13(b)(12).

Changes: The phrase “as used with respect to infants and toddlers with disabilities who are hearing impaired” has not been included in the definition of sign language and cued language services in new §303.13(b)(12).

Comment: One commenter suggested that the description of sign language and cued language services, which is now in new §303.13(b)(12) (proposed §303.13(b)(12)(iv)), was confusing because of the use of the word “and” between “cued language” and “auditory/oral language services.” The commenter recommended that this phrase be changed to “cued language or auditory/oral language services” because the word “and” implied that either all services in the list must be provided or none of the services can be provided.

Discussion: In reviewing new §303.13(b)(12) (proposed §303.13(b)(12)(iv)), we determined it was necessary to clarify and distinguish between services that focus on teaching and interpretation. Thus, we have clarified that sign language and cued language services include teaching sign language, cued language, and auditory/oral language, providing oral transliteration services (such as amplification), and providing sign and cued language interpretation.

Regarding the commenter’s concern about the use of the term “and”, this use does not mean that all of the services listed must be identified in the IFSP or provided. The definition of sign language and cued language services in new §303.12(b)(12) provides that sign language and cued language services “include” certain services and §303.18, in turn, defines the term include to mean “that the items named are not all of the possible items that are covered, whether like or unlike the ones named.” Accordingly, revising the reference to “and” in the definition of sign language and cued language services is not necessary.

Changes: We have revised new §303.13(b)(12) to define sign language and cued language services to include “teaching sign language, cued language, and auditory/oral language, providing oral transliteration services (such as amplification), and providing sign and cued language interpretation.”

Comment: One commenter requested that the Department add a parenthetical “such as amplification” to the phrase “oral transliteration” in new §303.13(b)(12) (proposed §303.13(b)(12)(iv)) and distinguish between “translation” and “transliteration.” Another commenter recommended moving the reference to cued language interpreting and transliteration services from the definition of early intervention services in new §303.13(b)(12) (proposed §303.13(b)(12)(iv)) to the definition of native language in §303.25(b) because, for children who are deaf, native language is defined as the mode of communication normally used by the individual (including sign language).

Discussion: Transliteration, in new §303.13(b)(12) (proposed §303.13(b)(12)(iv)), refers to the rendering of one language or mode of communication into another by sound such as voicing over difficult-to-understand speech in order to clarify the sounds, not the meaning. We agree that including amplification as an example of transliteration is appropriate and have added amplification as an example in the definition. However, because the regulations do not use the term “translation” (i.e., rendering one language into another by its meaning), there is no need to define that term. Additionally, we decline to adopt the commenter’s suggestion that we move the reference to cued language interpreting and transliteration services to the definition of native language in §303.25(b). These services are types of early intervention services that the IFSP Team may identify as needed by the eligible child and family and therefore including them under the definition of early intervention services in new §303.13(b)(12) (proposed §303.13(b)(12)(iv)) is appropriate. Further, including the reference recommended by the commenter in §303.25(b) is not necessary because we believe the examples in paragraph (b) of that definition, regarding mode of communication that is normally used by an individual who is deaf or hard of hearing, blind or visually impaired, or for an individual with no written language, are appropriate and further examples are not needed to understand the meaning of the term native language.

Changes: We have added the parenthetical “(such as amplification)” as an example of transliteration services in new §303.13(b)(12).

Comment: Several commenters recommended adding such services as auditory habilitation and rehabilitation, dysphagia, auditory-verbal therapy, oropharyngeal, or feeding and swallowing services to the definition of speech-language pathology services in new §303.13(b)(15) (proposed §303.13(b)(12)).

Discussion: The services identified in the definition of speech-language pathology services in new §303.13(b)(15) (proposed §303.13(b)(12)) are not intended to be exhaustive. Section 303.13(b)(15) (proposed §303.13(b)(12)) does not preclude an IFSP Team from determining that an infant or toddler with a disability is in need of any of the services suggested by the commenters if the services are necessary to meet the outcomes identified for that child in the child’s IFSP.

Changes: None.

Types of early intervention services--transportation and related costs (new §303.13(b)(16)) (proposed §303.13(b)(13))

Comment: Many commenters opposed the proposal to remove expenses for travel by taxi from the costs included in the definition of transportation and related costs. The commenters stated that omitting this type of transportation cost could be problematic for families who do not have access to private transportation or reliable public transportation or who live in large urban areas and rely on taxis to transport their child to an EIS provider.

Discussion: We did not include expenses for travel by taxi in the examples of transportation costs included in the definition of transportation and related costs because our understanding is that transportation via taxi for the purpose of traveling to an EIS provider is less common than the other examples we included in the proposed regulations such as transportation via common carriers. We did not intend to exclude such expenses specifically from the definition. Indeed, section 632(4)(E)(xiv) of the Act does not list any specific types of transportation and related costs. Accordingly, we have revised new §303.13(b)(16) (proposed §303.13(b)(13)) to remove the references to specific types of transportation costs.

Changes: We have revised new §303.13(b)(16) (proposed §303.13(b)(13)) to align more closely with the language in section 632(4)(E)(xiv) of the Act. Specifically, we have removed the parenthetical examples of travel and other costs that were in the proposed regulation.

Types of early intervention services--vision services (new §303.13(b)(17)) (proposed §303.13(b)(14))

Comment: Some commenters requested that the Department clarify the definition of vision services in new §303.13(b)(17)(iii) (proposed §303.13(b)(14)(iii)). A few commenters noted that the definition focused on older children and did not include the full scope of instruction available to young children and their families. One commenter expressed concern that the definition of vision services in new §303.13(b)(17) (proposed §303.13(b)(14)) described an outdated medical model that promotes skills training, rather than developmental adjustments that accommodate vision loss. A few commenters recommended that we add to this definition training and services in the following areas: tactile awareness, sensory utilization and preferences, emergent literacy, precane skills, environmental orientation, environmental adaptations, and modifications and conceptual understanding where visual impairment (including blindness) precludes typical access to early intervention.

One commenter suggested that the services listed could be included instead in the definition of special instruction in new §303.13(b)(14) (proposed §303.13(b)(11)) and requested guidance about who is qualified to provide these services.

Discussion: We have clarified in the definition of vision services in new §303.13(b)(17) that evaluations and assessments of visual functioning include the diagnosis and appraisal of specific visual disorders, delays, and abilities that affect early childhood development. We also agree that reference to independent living applies to older children and have deleted the reference, which was in proposed §303.13(b)(14)(iii), to “independent living skills training.”

Regarding commenters’ concerns that vision services are limited to “training” services and not skills, we note that the purpose of providing training to a child in specific vision areas is to improve the child’s skills in those areas. The definition of vision services provides discretion and flexibility for each IFSP Team to identify those vision services necessary to meet the unique needs of an infant or toddler with a disability and the child’s family. Therefore, we have not made the changes recommended by the commenter.

Maintaining separate definitions for special instruction and vision services aligns with sections 632(4)(E)(ii) and (4)(E)(xii) of the Act, regarding the types of services that are included as early intervention services. Vision services should not be included in the definition of special instruction because some of the examples of vision services would not be appropriate as examples of special instruction. For example, referral for medical or other professional services necessary for the habilitation or rehabilitation of visual functioning disorders, or both, would not fall under the definition of special instruction. The types of qualified personnel who may provide vision services are listed in §303.13(c). This list includes optometrists and ophthalmologists and is not exhaustive. Thus, providing additional guidance about who is qualified to provide vision services is not necessary.

Changes: We have added the words “that affect early childhood development” after the words “specific visual disorders, delays, and abilities.” We also have removed the phrase “independent living skills” from proposed §303.13(b)(14)(iii).

Qualified personnel (§303.13(c))

Comment: Several commenters supported our proposal to include in the definition of qualified personnel in §303.13(c) types of personnel that are not included in the current Part C regulations. Commenters specifically supported the inclusion of “registered dieticians,” “optometrists,” “teachers of children with hearing impairments,” and “teachers of children with visual impairments” in the list of qualified personnel.

A few commenters objected to the inclusion of “registered dieticians” and “vision specialists, including ophthalmologists and optometrists.” The commenters suggested that the inclusion of medical professionals, i.e., ophthalmologists, might cause confusion about whether diagnostic services provided by ophthalmologists would qualify as early intervention services. Other commenters requested that the Department provide separate guidance about the use of and distinction between “ophthalmologists and optometrists.” One commenter requested clarification about whether a lead agency was responsible only for referring families to these specialists or if they also would be responsible for paying for diagnostic services.

One commenter requested that nutritionists be added to the list of qualified personnel because a nutritionist might be available when a registered dietician is not.

Discussion: We appreciate the commenters’ support for the proposed definition of qualified personnel in §303.13(c). We included registered dieticians and vision specialists, including ophthalmologists and optometrists, in the proposed regulations to conform with the language in section 632(4)(F)(viii) and (4)(F)(x) of the Act, which lists these specialists as qualified personnel who provide early intervention services. Any of the personnel listed under this section could perform diagnostic services as part of the ongoing assessment of an infant or toddler or provide direct services to an infant or toddler with a disability and these services would qualify as early intervention services.

Concerning the comment about a lead agency’s payment and referral responsibility, the lead agency would be responsible for referring families to ophthalmologists or optometrists and also would be responsible for paying for diagnostic services, as required under §303.13(b)(5).

We did not include the term nutritionist in the examples of qualified personnel in §303.13(c) because this term was not included in section 632(4)(F)(viii) and (4)(F)(x) of the Act. However, nothing precludes lead agencies from utilizing services from a nutritionist if a nutritionist, instead of a registered dietician, can provide the nutrition or other services identified in the child’s IFSP.

Changes: None.

Comment: A few commenters recommended listing “teachers of children with hearing impairments” and “teachers of children with visual impairments” in separate paragraphs in the definition of qualified personne